SIU KWOK KEUNG RAYMOND v. YEE SHIA YUEN

DCCJ 2131/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2131 OF 2012

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JUDGMENT

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The parties and their cases

1.  This was a suspected water seepage case involving two units respectively owned by the plaintiff and the defendant in a multi-storey building known as Elegant Court, Nos 14 and 14A Shan Kwong Road, Hong Kong (“the Building”).

2.  The action was brought by Siu Kwok On Vincent (“Siu”) as the lawful attorney for and on behalf of the plaintiff.

3.  By this action, the plaintiff claimed against the defendant for water seepage from the defendant’s premises to the plaintiff’s premises which constituted a nuisance caused or permitted by the defendant since about May 2011.  Further or alternatively, it was the plaintiff’s case that the water seepage was caused by the willful neglect and/or negligence of the defendant, her servant or agent, in failing to identify the leaking pipes at the defendant’s premises and/or failing to take any or any sufficient steps to stop the water leakage.

4.  As a result, it was claimed that the plaintiff had suffered loss of rental between 15 January and 13 March 2012 in the sum of $45,206.90, and that he has also incurred expenses to carry out remedial works to repair and/or redecorate his premises at the costs of $31,300.

5.  The defendant denied any responsibility for the alleged water seepage whereby the plaintiff was put to strict proof the existence and the cause thereof.  It was contended by the defendant that at all material times she had fully co-operated with the management company of the Building, Wellpoint Property Management Limited (“the Management Company”), to facilitate the inspection of her premises and the carrying out of the rectification works. Further or alternatively, the defendant alleged that the water seepage had been caused by the defective communal drainage pipe which formed part of the common parts of the Building.  As such, it should be the duty of the Incorporated Owners (“the Incorporated Owners) of the Building, and not that of the defendant, to repair the same in accordance with the Deed of Mutual Covenant and Grant (“the DMC”).  

6.  Further, while the Incorporated Owners was joined as the third party in this action, it did not take part in the main action between the plaintiff and the defendant, and was not present throughout the present hearing[1]. Accordingly, as far as the present hearing was concerned, it was only the trial between the defendant and the plaintiff without the need to consider the question of contributions by the Incorporated Owners. 

The relevant factual background

7.  The following facts were largely not disputed by the parties:-

(a) The plaintiff’s premises was situated immediately underneath the defendant’s premises;

(b) The layouts of the two premises were the same in that they both had a balcony outside the toilet.  At the balcony of each premises, there was a communal drainage pipe running from the ceiling to the floor and extending vertically throughout the entire building, and a closestool drain pipe;

(c) The communal drainage pipe and the closestool drain pipe inside the defendant’s premises were enclosed by wooden boards.  At the bottom of the wooden boards, there was a movable panel covering an inspection hole (“生口位”) with the dimension of 1 feet x 1 feet.  After removal of the covering panel, one could look through the inspection hole and see the pipes inside;

(d) Both premises were vacant at the material times; 

(e) The plaintiff’s premises has been unoccupied since its acquisition by the plaintiff on 23 November 2010[2].

(f) As for the defendant’s premises, it has been left vacant since the defendant moved out on 20 January 2011.  Thereafter, the defendant has left the key to her premises with the caretaker of the Building for its viewing by prospective buyers or tenants[3];

(g) In about May 2011, Siu got the defendant’s key from the caretaker.  He together with his decoration contractors went to the defendant’s premises for inspection regarding the water seepage problem.  Being unaware of the inspection hole on the wooden boards, they were unable to inspect the pipes inside and did not identify any source of leakage within the defendant’s premises;

(h) By a letter dated 10 August 2011, Siu made a complaint to the Management Company about the water seepage from the defendant’s premises.  Two days later, the Management Company upon the instruction of its property management manager, Lam Yiu Hang (“Lam”), sent a letter dated 12 August 2011 to the defendant informing her about Siu’s complaint and demanding her to rectify the water seepage problem within 14 days;

(i) In about September 2011, Siu together with an interior decoration company, Basic Construction Engineering Co Limited (“BCE”), had the second inspection of the defendant’s premises[4]. Again, they did not notice the inspection hole on the wooden boards and were unable to inspect the pipes inside.  No source of leakage within the defendant’s premises was found on this occasion;  

(j) At the instruction of Siu, in about September 2011, BCE prepared a quotation for the remedial works in the defendant’s premises to rectify the water seepage problem and Winnie Ng (“Ng”), an estate agent, was asked by Siu to deliver it to the letter box of the defendant’s premises;

(k) Further, in about November 2011, Siu contacted the Joint Office (“the Joint Office”) of the Buildings Department and Food & Environmental Hygiene Department (“FEHD”), and complained about the water seepage from the defendant’s premises;

(l) On 2 December 2011, a site inspection of the plaintiff’s premises was conducted by the Buildings Department whereby algae were reported to be found along the communal drainage pipe in it[5];

(m) Pursuant to the prior appointment with the defendant, on 6 December 2011, Yan Kam Choi (“Yan”), a health inspector of the Joint Office, visited the defendant’s premises and conducted colour water tests to the drainage outlets in its toilet;

(n) According to a letter dated 21 May 2014 from the Joint Office to the defendant’s solicitors, Messrs Gary K W Tam & Co, Yan attended the plaintiff’s premises on 8 December 2011 as a matter of follow-up of the aforesaid colour water tests.  During his inspection, Yan noticed that there was some colour dyes at the joints of the communal drainage pipe in the plaintiff’s premises.  He then collected a sample of the emulsion paint from the surface of the communal drainage pipe and a sample of the plaster from the ceiling nearby.  Both samples were later sent to the government laboratory for analysis.  Reportedly, the colour water tests of the plaster sample had a negative result (see the analytical reports by the Government Laboratory respectively dated 23 and 29 December 2011) whereas the sample of the emulsion paint had a positive result under test.  These test results were said to be indicative that the communal drainage pipe in the plaintiff’s premises was defective; 

(o) Further, by a letter dated 15 December 2011, the Joint Office advised Siu that the communal drainage pipe in the plaintiff’s premises was found to have signs of damage during its inspection on 8 December 2011[6];

(p) Under the arrangement of the Management Company, in about December 2011, Chan Kam Yeung (“CKY”) of Kam Yeung Kee Engineering (錦洋記工程) attended both premises for inspection;

(q) Based on his visual observations, CKY came to an initial assessment that the interchange joint（三叉口駁位）in the communal drainage pipe was broken and this caused the water seepage suffered by the plaintiff’s premises;

(r) The interchange joint was a socket-like device in the shape of a horizontal “T” with three openings, one horizontal and two vertical, at its ends.  The horizontal opening was connected to the closetool drain pipe in the defendant’s premises whereas the two vertical openings were respectively connected to the communal drainage pipe in the defendant’s premises and that in the plaintiff’s premises.  As such, the interchange joint served as the common spot of all the pipes connected to it[7];

(s) According to CKY, the leakage (i.e. broken) point of the interchange joint was embedded in the floor slab between the plaintiff’s and the defendant’s respective premises so that a through-hole had to be created on the floor slab in order to carry out the rectification works.  Further, while there was nothing wrong about the closestool drain pipe in the defendant’s premises, a part of it as well as the wooden boards was required to be cut off or dismantled to facilitate the replacement of the defective interchange joint. Besides, a very small portion of the communal drainage pipe respectively above and below the interchange joint would need to be cut off to enable the reconnection of the new interchange joint.  All such rectification works had to be carried out in the defendant’s premises;

(t) Shortly after his inspection, CKY prepared a quotation for the remedial works to rectify the water seepage.  However, he made a mistake in his quotation that the works of dismantling the wooden boards and cutting off of the closestool drain pipe should be performed in the plaintiff’s premises[8]. Therefore, in about early January 2012, he made a second visit of the two premises for checking about the mistake and revised his quotation accordingly;

(u) It was eventually accepted between the Incorporated Owners and the defendant that the Incorporated Owners should be responsible for the costs of replacing the interchange joint whereas the defendant should be responsible for the costs of dismantling the woodened boards and the cutting off (and reconnection) of the closestool drain pipe in her premises;

(v) The Incorporated Owners however wanted to receive further quotations from contractors other than CKY.  Thus, it was not until 9 February 2012 when the members of the Incorporated Owners convened a meeting and resolved to engage CKY to perform the rectification works;

(w) Between 15 and 18 February 2012, CKY carried out the rectification works whereby he replaced the interchange joint which he confirmed to have been damaged after he dug into the floor slab.  All the rectification works were performed in the defendant’s premises except that some post-repair works such as plastering, painting and cleaning works were done in the plaintiff’s premises;

(x) Thereafter, there has been no more water seepage suffered by the plaintiff’s premises;

(y) Subsequently, pursuant to the said arrangement reached between the Incorporated Owners and the defendant, they duly paid their respective share of the costs for the rectification works done by CKY.

The alleged water seepage

8.  The evidence of finding out the alleged water seepage mainly came from Siu who was at all material times responsible for managing and looking after the plaintiff’s premises.  

9.  According to Siu, since about May 2011 he has noticed water leak from the defendant’s premises resulting in moulds and water stains around the ceiling and the wall near the communal drainage pipe in the plaintiff’s premises.  For investigation of the matter, Siu has entered the defendant’s premises twice in about May and September 2011.  Further, on about 10 August 2011, he made a written complaint to the Management Company about the water seepage from the defendant’s premises.  In about September 2011, he also instructed BCE to prepare a quotation for the rectification works.  In his letter of complaint, there were attached some recent photographs showing the mouldy condition of the plaintiff’s premises.

10.  I however find Siu not to be a reliable or credible witness.  Not only that his oral evidence was at times inconsistent with his witness statements, but some of his answers given in his evidence-in-chief were self-contradictory or were inconsistent with his answers under cross-examination.  For example, it was stated in his witness statement that during the rectification works by CKY, Siu had gone to the defendant’s premises where he had seen water leaking from the closestool drain pipe and the communal drainage pipe, and he had taken photographs of the scene.  He later added in his oral evidence that he had observed there to see water leaking from the communal drainage pipe for about some 10 odd minutes.  Upon invitation by me, Siu made a marking on one copy of the photographs[9] to indicate the position in the communal drainage pipe from where water was seen to have leaked.  However, he later changed his evidence by saying that he had been in the plaintiff’s premises when he had made the aforesaid observation and this had taken place before the commencement of the rectification works by CKY.  When being asked if he was then in the plaintiff’s premises how he could see the pipes on the upper floor as no though-hole has yet been created on the floor slab in between, Siu retracted his previous answer and said that he had only been told by CKY about the position of the leakage point without actually seeing it.

11.  In my judgment, Siu’s evidence was characterised by inconsistencies and self-contradictions which adversely affected his credibility as a witness.  As such, I should bear this in mind when evaluating his evidence and be slow to act on his evidence in the absence of other corroborating evidence.

12.  Having said that, Siu’s aforesaid version of events was not disputed by the defendant except that the defendant denied Siu’s inspections of her premises in about May and September 2011 to have been made with her prior knowledge and consent.  I shall deal with this dispute of facts in the later part of my judgment.

13.  As far as the existence of the alleged water seepage is concerned, I find as a matter of fact that since about May 2011 the plaintiff’s premises has suffered from water seepage as described in Siu’s testimony.

The source of the water seepage

14.  As a matter of general law, there is no presumption that water leakage must necessarily be caused by the flat above (see張秀玲及吳炳漢訴鄭禮莊, unreported, CACV 268 of 1998, 9 April 1999), and the burden of proving the source of the water leakage rests solely on the plaintiff.

15.  As set out in paragraphs 7 (n) & (o) above, there were letters and analytical reports from the government authorities which suggested that based on the inspections and colour water tests performed by the Joint Office the water seepage was caused by the defective communal drainage pipe in the plaintiff’s premises.  However, none of the persons responsible for carrying out the inspections or the colour water tests or the analysis of the test results were called to give evidence at trial.  Therefore, there was scanty of information to enable me to understand the basis of the findings derived from such inspections or tests, and accordingly assess the accuracy thereof.  This was particularly the case where the analytical report in relation to the sample of the emulsion paint which was said to have a positive test result was not made available to court. 

16.  On the other hand, it was CKY’s evidence that the interchange joint was broken and this caused the water seepage to the plaintiff’s premises. Originally, CKY was listed as a defence witness but at the beginning of the trial Ms Chan, counsel for the defendant, informed me that his evidence was no longer required by the defence.  Subsequently, CKY was arranged to be called as a factual witness for the plaintiff. 

17.  According to CKY’s testimony in court, during his first visit of the defendant’s premises in about mid-December 2011, he looked through the inspection hole on the wooden boards whereby he observed that the ground and the wall surface inside were dry, and there were no signs of water seepage.  He then went down to the plaintiff’s premises and found moulds clustered at the ceiling and the wall near the communal drainage pipe. Based on his visual observations, CKY formed the initial assessment that the interchange joint which was partially embedded in the floor slab should be damaged and this should be the cause of the water seepage.  His assessment was subsequently proved to be correct when he dug into the floor slab to commence the rectification works and saw water leaking from the interchange joint. 

18.  CKY impressed me as a straightforward person with no axe to grind.  I find him to be an honest and credible witness, and accept his evidence regarding the physical cause of the water seepage in the absence of any challenge under cross-examination.  More importantly, it was not disputed that after the replacement of the interchange joint, there has been no more water seepage suffered by the plaintiff’s premises.

19.  For the reasons stated above, on the issue about the source of the water seepage, I accept CKY’s evidence in preference to the finding as suggested in the said letters and analytical reports by the government authorities.  It should however be made clear that in arriving at my finding I place no reliance on the initial assessment formed by CKY who was not called to give expert opinion on the source of leakage, but rather on his evidence that he actually saw water leaking from the interchange joint when he dug into the floor slab.  Such evidence was reinforced by the fact that there has been no more water seepage suffered by the plaintiff’s premises after the interchange joint was replaced.

Whether the water seepage was originated within the defendant’s premises

20.  It is only trite that water seepage from one’s premises to another may constitute a nuisance at law(See The Incorporated Owners of Summit Court v Full Surplus Investment Ltd. & Another [2007] 3 HKLRD 351 at paragraph 36).

21.  However, since it is the evidence of CKY that the leakage point in the defective interchange joint was embedded in the floor slab between the plaintiff’s and the defendant’s respective premises, Ms Chan argued that the floor slab did not form part of the defendant’s premises and hence the defendant should not be responsible for the resulting water seepage which was not originated from her premises.

22.  In line with Ms Chan’s argument, Nation Group Development Ltd v New Pacific Properties Ltd (2000) 3 HKCFAR 427 is the authority for the proposition that the inner space in a floor slab does not form part of the premises above it.  In this case, the Court of Final of Appeal at p 436G quoted with approval the following statement made by Godfrey JA in the proceedings below,

“the parties must be taken to have intended that the purchaser was to be given "the right to the exclusive use of the floor and ceiling surfaces of the First Floor and of the air space between them, in other words, of the entire volume of the first floor space, but not use of the underside of the concrete slab.”

23.  On the other hand, Mr. Chan, counsel for the plaintiff, referred me to the case of John So and Another v Lau Hon Man and Others [1993] 2 HKC 356 where the Court of Appeal pointed out that “for many purposes, the floor slab is a common part”.  Nevertheless, it went on to hold that a water pipe encased in the floor slab for the exclusive use of the respondent’s unit came within part of that unit and was not a common part of the building.  According to the Court of Appeal, it was right “to treat the circumstance that the sole purpose of the pipe was to serve the respondents’ flat as the determining factor as to whether the pipe was in the respondents’ part of the building”.

24.  According to Mr. Chan, since the interchange joint was the common spot of the closestool drain pipe and the communal drainage pipe, the water seepage from it should be taken to be caused by leaking from both pipes.  Further, given that the sole use of the closestool drain pipe was to drain the flush water of the defendant’s premises to the communal drainage pipe, the interchange joint to which the closestool drain pipe was connected should be regarded as coming within part of the defendant’s premises in accordance with the legal principle in John So, supra.

25.  It seems to me that Mr. Chan has mixed up the interchange joint with the pipes connected to it.  While the interchange joint served to provide the connection point between the closestool drain pipe and the communal drainage pipe, it was a separate and independent device from those pipes connected to it so that the leakage in it could not be taken to be the leakage in those pipes.

26.  As was obvious from CKY’s evidence, one of the functions of the interchange joint was to provide the connection between the communal drainage pipe in the defendant’s premises and that in the plaintiff’s premises.  There being no question that the communal drainage pipe was for the communal use of the Building, the interchange joint could hardly be said to serve the defendant’s premises exclusively.  John So’s case was thus distinguished from the present case.

27.  However, it is pertinent to note that according to the uncontradicted evidence of CKY one half of the interchange joint was exposed above ground in the defendant’s premises with the other half of it being embedded in the floor slab.  In the circumstances, I have little hesitation in finding that the interchange joint was physically within the defendant’s premises. 

28.  It follows from the aforesaid finding that the nuisance as constituted by the water seepage was originated from the defendant’s premises since it was caused by the defective interchange joint in it.  In this context, it is irrelevant that the burst point in the interchange joint happened to be embedded in the floor slab.

The defendant’s telephone communications with Siu, Lam and Ng

29.  As rightly conceded by Mr. Chan both in his oral and written closing submission, there was no evidence in the present case to suggest that the water seepage was created by the defendant.

30.  Therefore, the next relevant question is whether the defendant has adopted or continued the nuisance in accordance with the English House of Lord’s decision in Sedleigh-Denfield v O’Callaghan [1940] AC 880 where Lord Viscount Maugham stated at p 894:-

“an occupier of land is liable for the continuance of a nuisance created by others, eg., by trespassers, if he continues or adopts it……In my opinion an occupier of land “continues” a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He “adopts” it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance.”

31.  As such, one of the main bones of contention between the parties was whether and if so when the defendant knew or ought to have known that the water seepage was originated from her premises.

32.  In this connection, much was said by the parties at trial about the defendant’s respective telephone communications with Siu, Lam and Ng.  As I find it, one important aspect about such communications rests on the question when the defendant first learnt about Siu’s complaint of water seepage from her premises.  This in turn shall be relevant to the question whether there was any delay on the defendant’s part to take appropriate action to stop the water seepage or to investigate the cause thereof. 

The telephone communications between the defendant and Siu

33.  According to Siu’s witness statement, shortly after he found out the water seepage in about May 2011, he has reported the matter to the management office of the Building where he was given the mobile phone number of the defendant.  He then used his mobile phone to call the defendant and complained to her about the water seepage.  In this telephone conversation, the defendant denied any responsibility for the water seepage but told Siu that he might use the key she had left with the caretaker to enter and inspect her premises. 

34.  Subsequently, in about May 2011, Siu got the defendant’s key from the caretaker and went together with his contractors to the defendant’s premises for inspection.  In his supplemental witness statement, Siu added that on this occasion the caretaker had called the defendant in Siu’s presence and confirmed with the defendant that she had agreed to let Siu have her key and inspect her premises.  Further, Siu stated in his supplemental witness statement that he had called the defendant between August and September 2011 whereby the defendant had agreed to Siu’s use of her key to inspect her premises. 

35.  The defendant however testified that she had had no telephone conversations with Siu until 7September 2011 when she had first talked with Siu about the alleged water seepage.  While she confirmed that she had left her key to the caretaker, she denied having allowed Siu to take her key and inspect her premises.  It was the defendant’s evidence that Siu’s inspections of her premises in about May and September 2011 were made without her prior knowledge and consent.

36.  In this connection, the call records of Siu’s mobile phone and those of the defendant’s mobile phone were respectively produced as evidence in court. According to those call records, there were only the following telephone communications between Siu and the defendant:-

(a) on 7 September 2011 one call from Siu to the defendant which lasted for about 3 minutes;

(b) on 16 September 2011 one call from the defendant to Siu which lasted for about 3 minutes;

(c) on 22 and 23 September 2011 altogether two calls from Siu to the defendant but both calls were forwarded to the voicemail of the defendant’s phone number; and

(d) on 7 January 2012 altogether three calls from Siu to the defendant in that the first two calls respectively lasted for about 1 minute and the third call was forwarded to the voicemail of the defendant’s phone number.

37.  Therefore, as a matter of record, there were no phone calls between Siu and the defendant from April to August and from October to December in 2011.

38.  Notwithstanding the absence of any supporting records, Mr. Chan submitted that it was only natural for Siu to call the defendant in about May 2011 when he discovered the water seepage from the defendant’s premises. Therefore, it would be unrealistic for the defendant to suggest that Siu should delay the matter and call her only on 7 September 2011.  Mr. Chan also referred me to Siu’s supplemental statement whereby Siu clarified that he might have been in the mainland and using a local phone card to call the defendant in about May 2011.  This according to Siu might be the reason why the calls were not shown in the call records.

39.  Further, Mr. Chan submitted that without the defendant’s consent Siu should not have been able to get the key from the caretaker who was entrusted with it by the defendant only to facilitate viewing of her premises by prospective purchasers or tenants.  Accordingly, the defendant must have given her consent to Siu’s use of her key during the respective telephone conversations with Siu and/or the caretaker.

40.  While I acknowledge that there was some force in Mr. Chan’s submission, it is noted that Siu’s testimony in court was not entirely consistent with his version in his witness statements.  In his examination-in-chief, Siu said that he could not remember whether he had used his present phone number (i.e. the one as shown in his call records) to call the defendant since he might have lost his mobile phone previously.  This was yet another reason vaguely put forward by Siu to explain about the absence of any records concerning the calls allegedly made in about May 2011.  Later in his cross-examination, Siu confirmed that he had used his present phone number to call the defendant but suggested that he might also have called the defendant in about April 2011. However, when being asked to point out the alleged call made in April 2011 from the call records (where there were clearly no such calls in the records), Siu again retracted his previous answers by saying that he had been in the management office where the caretaker had managed to contact the defendant and the caretaker had passed over the phone to him to talk with the defendant. This latest version by Siu was clearly in sharp contrast with what he stated in his witness statements and in his earlier evidence.

41.  Further, under cross-examination Siu suggested for the first time that during the telephone conversation on 7 September 2011 he had requested the defendant to dismantle the wooden boards in her premises for inspection of the pipes inside but this had been refused by the defendant.  Such a request by Siu or the defendant’s refusal of it was never mentioned in his letter of complaint to the Management Company dated 10 August 2011, his witness statements or evidence-in-chief.  Instead, Siu only complained in his witness statement that the defendant should have complied with the demand by the Management Company to dismantle the wooden boards in her premises[10].

42.  On the other hand, according to the defendant’s evidence, in the telephone conversation of 7 September 2011, she told Siu that she had already moved out from her premises several months ago but had noticed no signs of water leakage in it while she had been living there.  She also told Siu that she had just renovated her premises in about late July 2011 and no water leakage problem had been detected by her contractor.  Nevertheless, the defendant promised to call back Siu after she confirmed this again with her contractor.  Therefore, after this telephone conversation, the defendant has called her contractor who confirmed that he had seen no signs of water seepage during the renovation works.  Further, the defendant has gone back to her premises to check it herself.  In so doing, she has checked, amongst other things, the pipes inside the wooden boards by looking through the inspection hole and found no signs of water seepage in her premises.  Subsequently, on 16 September 2011, the defendant called back Siu and informed him about what she was told by her contractor as well as the result of her own checking. 

43.  Regarding the two telephone calls on 22 and 23 September 2011, Siu testified in his evidence-in-chief that there were conversations between the defendant and him in these two calls.  Under cross-examination, Siu further added that on 23 September 2011 he had asked the defendant over the phone to follow up the water seepage problem but the defendant had immediately cut off the line after hearing this.  However, this was not only inconsistent with what Siu stated in his witness statement that the defendant did not answer his calls on those two occasions, but was also contradictory to the defendant’s call records which confirmed that those two calls were all forwarded to the voicemail of the defendant’s phone number.

44.  Finally, it was Siu’s evidence that he gave three calls to the defendant on 7 January 2012, but each time when he asked the defendant to confirm about the time of rectifying the water seepage problem the defendant immediately cut off the line.  This version of Siu’s was inconsistent with the defendant’s call records which confirmed that Siu’s third call on that day was forwarded to the voicemail of the defendant’s phone number.

45.  As for the three telephone calls from Siu on 7 January 2012, the defendant testified that in the first two calls she had tried to explain to Siu about the progress of the rectification works but Siu had refused to listen to her.  There was however no conversation in the third call since the defendant missed the call which was then forwarded to the voicemail of the defendant’s phone number.  Therefore, after these telephone calls, the defendant gave a call to Lam on the same day and asked him to explain the situation to Siu. 

46.  For the reasons canvassed in the latter part of my judgment, I also find the defendant not to be a credible witness.  However  as far as this part of the evidence is concerned, I find Siu’s version to be unreliable and accept the defendant’s aforesaid account of events which I find to be consistent with the call records and more likely to conform to the truth.  Accordingly, I reject Siu’s version insofar as the same was inconsistent with the defendant’s.

47.  In particular, I find that there were telephone communications between Siu and the defendant in accordance with the call records.  As such, Siu and the defendant have only had their first telephone conversation on 7 September 2011.  By this telephone conversation, the defendant was informed by Siu for the first time about the alleged water seepage from her premises to the plaintiff’s premises.

48.  Further, I find that the defendant has not allowed Siu to use her key. His inspections of the defendant’s premises in May and September 2011 were made without her prior knowledge and consent.  In this connection, I reject Siu’s allegation that the caretaker has talked with the defendant whereby the defendant confirmed to have agreed to Siu’s use of her key to inspect her premises.  I also reject Siu’s allegation that he has requested the defendant to dismantle the wooden boards in her premises and that it was refused by the defendant.

The telephone conversations between the defendant and Lam

49.  At all material times, Lam was in charge of the management of the Building as the property management manager of the Management Company.  He was called to give evidence for the plaintiff at trial.

50.  Lam testified in court that in about mid-2011 Siu had complained to the Management Company about water seepage from the defendant’s premises to the plaintiff’s premises.  Since then, the staffs of the Management Company have sought to contact the defendant by phone but in vain.  Subsequently, on about 10 August 2011, the Management Company received the letter of complaint from Siu about the water seepage.  Two days later, upon Lam’s instructions, the Management Company sent to the defendant a letter dated 12 August 2011 informing the defendant about Siu’s complaint and demanding her to rectify the water seepage problem within 14 days.  Attached to the letter were some photographs provided by Siu showing the mouldy condition of the plaintiff’s premises at the ceiling and the wall near its communal drainage pipe. 

51.  After the issue of the letter by the Management Company, between about mid-August and December 2011, Lam has sought to contact the defendant by phone and has been able to talk to her about the alleged water seepage on three or four occasions.  Over those telephone conversations, Lam has requested the defendant for permission to allow the Management Company to inspect her premises but this was refused by the defendant.  Later, the Incorporated Owners received from the Building Authority the letter dated 10^th January 2012 advising the need to repair the defective communal drainage pipe in the plaintiff’s premises.  Therefore, according to his witness statements[11], Lam called the defendant again and urged her to take remedial action.  Only by then did the defendant ask Lam to introduce to her a contractor for the remedial works and consent to have her premises inspected by the Management Company.  Subsequently, pursuant to the defendant’s request, Lam introduced CKY to the defendant for the carrying out of the remedial works.

52.  On the other hand, it was the defendant’s evidence that she only first talked to Lam over the phone about the alleged water seepage on 31 December 2011.  She denied that she had ever refused Lam’s request for permission to inspect her premises.  Further, the defendant gave evidence in court that prior to this telephone conversation with Lam, no one from the Management Company had informed her about Siu’s complaint.  This was so notwithstanding that she has used to return to the Building once in every one or two months to pick up her mails and pay the management fees since she moved out from her premises.

53.  According to the defendant, she received a call from the caretaker of the Building in the morning of 31 December 2011.  From the caretaker, the defendant learned that Lam was looking for her and was given Lam’s phone number.  Therefore, the defendant gave a call to Lam on the same day.  During this telephone conversation, Lam told that an inspection of the defendant’s premises had already been carried out under the arrangement of the Management Company by using the key she had left with the caretaker.  As to this, the defendant testified in court that she had had no prior knowledge of this inspection by the Management Company.  Nevertheless, over the phone, Lam went on to tell the defendant that a quotation for the remedial works would be prepared in due course.  As such, the Incorporated Owners should be responsible for the costs of repairing the communal drainage pipe whereas the defendant should be responsible for the costs of other works in relation to some private items in her premises such as the removal of wooden boards in it.  On this occasion, the defendant did not object to this proposal by Lam.

54.  Under cross-examination, while Lam confirmed that he had talked with the defendant on 31 December 2011, he disagreed that this had been his first telephone conversation with the defendant.  He also denied that the Management Company had arranged its contractor to inspect the defendant’s premises without her consent.  He only told the defendant over the phone that an inspection of her premises should have been carried out in order to find out what needed to be done.  According to Lam, it was only with the defendant’s consent that CKY has subsequently entered and inspected her premises under the arrangement of the Management Company.  Besides, prior to the defendant giving her consent to CKY’s inspection, Lam has had no knowledge that the defendant has left her key to the caretaker.  He was only told about this by the defendant when she agreed to have her premises inspected by the Management Company.

55.  On balance, I do not accept the defendant’s allegation that she had her first telephone conversation with Lam only on 31 December 2011.  There was no dispute that two days after the Management Company received the written complaint from Siu, Lam has caused the Management Company to write to the defendant and demand her to take remedial action.  As such, the Management Company and Lam have obviously pursued Siu’s complaint diligently.  It was thus unlikely that Lam should wait until 31 December 2011 to seek to contact the defendant. 

56.  In this regard,  I consider that the defendant has not been frank to the court about her telephone communications with Lam whereby she has obviously sought to cover up the fact that she has previously turned down Lam’s requests to inspect her premises.   In my judgment, such refusals by the defendant was the reason why an inspection of her premises could not have been carried out by CKY earlier despite Siu’s written complaint to the Management Company on 10 August 2011.

57.  In the circumstances, I find it more likely that between mid-August and December 2011, Lam has on three or four occasions had telephone conversations with the defendant whereby the defendant was informed about Siu’s complaint of the water seepage.  During those telephone conversations, the defendant has turned down Lam’s requests to inspect her premises.

58.  Having said that, I note that according to Lam’s witness statements he introduced CKY to the defendant on about 10 January 2012 and subsequently the defendant gave her consent to CKY’s inspection of her premises.  However, under cross-examination, Lam agreed that CKY had prepared the quotation for the rectification works in about December 2011.  He further confirmed that prior to this, CKY had already inspected the defendant’s premises with her consent.  In this connection, it was the uncontradicted evidence of CKY that he inspected the defendant’s premises in about mid-December 2011.

59.  In accordance with Lam’s evidence under cross-examination and CKY’s said uncontradicted evidence, I find it more likely that the defendant should at least by mid-December 2011 consent to the inspection by CKY under the arrangement of the Management Company.  

60.  Accordingly, for the reasons given above and subject to the aforesaid, on the question about the telephone conversations between Lam and the defendant, I accept Lam’s version of events and reject the defendant’s insofar as Lam’s version was inconsistent with the defendant’s.

The telephone conversations between the defendant and Ng

61.  Ng was the estate agent who was engaged by Siu in about 2011 to look for tenants for the plaintiff’s premises and take care about the sale and purchase of Siu’s properties.  She was called to give evidence for the plaintiff at trial.

62.  According to Ng’s oral testimony, in about mid-September 2011, she was instructed by Siu to deliver BCE’s quotation (with photographs attached) to the letter box of the defendant’s premises.  After she has done so, she immediately called the defendant and informed the latter that at the instructions of Siu she had just put an envelope containing a quotation for the remedial works into the letter box of the defendant’s premises.  In response, the defendant only said to Ng that “Okay! Okay! I am busy” and hung up the phone.  Then, Ng called the defendant again but the line was cut off by the defendant without saying anything. 

63.  However, contrary to Ng’s oral testimony, it was stated in her witness statement that she had only talked to the defendant in the first telephone call but there had been no conversation between them in the second call.  As to this, Ng explained that she had made a mistake in her witness statement on this point and confirmed her version in court to be correct.

64.  Further, according to her witness statement, Ng told the defendant over the phone that there was water seepage from the defendant’s premises and requested the defendant to sort out the matter as soon as possible.  This was also inconsistent with Ng’s oral evidence in court that she had not talked with the defendant about the water seepage problem over the phone.  Regarding this, Ng clarified that due to the lapse of time she could not have recalled the exact content of the telephone conversation with the defendant.  In the circumstances, Ng conceded that she might have briefly mentioned the water seepage with the defendant as was stated in her witness statement.

65.  On the other hand, it was the defendant’s evidence that she had just one telephone conversation with Ng in about late September 2011.  During this telephone conversation, she has discussed the water seepage with Ng and advised Ng to seek the assistance of FEDH to find out the cause thereof.  However, according to the defendant, Ng did not mention to her anything about putting the quotation into the letter box. 

66.  Regarding the allegations by the defendant, Ng denied that the defendant had advised her to seek the assistance of FEHD.  Further, she was adamant that she has told the defendant about her putting the quotation into the letter box for her collection since according to Ng this was the only purpose of her calling the defendant.

67.  As mentioned above, Ng has admitted that due to the lapse of time she could not recall precisely the content of her telephone conversation with the defendant.  Further, she was shown clearly to have made mistake in her evidence on some important aspects about this telephone conversation.  Accordingly, subject to what I am going to say further on this subject hereinbelow, I accept the defendant’s evidence in this respect as the accurate account of the telephone conversation between Ng and the defendant.  In particular, I find that during their telephone conversation the defendant has discussed the water seepage with Ng and advised the latter to seek the assistance of FEHD to find out the cause thereof.

68.  That said, I reject the defendant’s allegation that in their telephone conversation Ng did not mention to her about putting the quotation into the letter box.  As to this, I accept Ng’s saying that the only purpose of Ng calling the defendant was to inform the latter to collect the quotation from the letter box.  It was therefore unlikely that Ng would omit to mention this to the defendant especially where Ng has called the defendant immediately after she delivered the quotation.

69.  Besides, there was no mentioning of the said allegation in the defendant’s witness statements.  Nor was such an allegation put to Ng by Ms Chan during her cross-examination of Ng.  In the circumstances, I consider that the allegation was something made up by the defendant in the course of her evidence with the obvious intent to distance herself from the demand to take up remedial works to stop the water seepage.

70.  Accordingly, I find as a matter of fact that Ng has informed the defendant about her putting the quotation into the letter box of the defendant’s premises during their telephone conversation.

The letter by the Management Company and BCE’s quotation

71.  In the present case, while there is no dispute that both the letter by the Management Company dated 12 August 2011 and the BCE’s quotation have been sent to the defendant, the question remains whether the same actually came to the hands of the defendant.

72.  As for the letter by the Management Company, it was Lam’s evidence that two days after the Management Company received the written complaint from Siu on 10 August 2011, he has caused the Management Company to send the letter to the defendant.  However, Lam went on to state in his evidence that he could not remember if the letter was sent to the defendant’s premises by post or by insertion into its letter box.  Nor was he in a position to tell whether the letter came to the hands of the defendant although in a subsequent telephone conversation with the defendant he was told by the latter that she had not received it.

73.  As for the BCE’s quotation, it was Ng who was asked by Siu to deliver it to the letter box of the defendant’s premises.  In her evidence, Ng confirmed that in about mid-September 2011, she duly delivered the quotation into the letter box as was instructed.

74.  However, it was the defendant’s evidence that she has not received both documents. 

75.  In the normal course of events, the two documents, whether sent by post or by insertion into the letter box of the defendant’s premises, should reach the hands of the defendant.  However, while there might be miscarriage of the letter by the Management Company if it was sent by post, it would be difficult to imagine how the defendant could have missed the BCE’s quotation which was inserted into the letter box of her premises.  This was particularly so where after the delivery of the BCE’s quotation Ng has immediately informed the defendant that it had been put into the letter box for her collection. 

76.  In the circumstances, I do not accept the defendant’s bare allegation that she has not received the said letter by the Management Company and the BCE’s quotation.  In this regard, it was not disputed that the defendant has told Lam that she had not received the letter by the Management Company.  However, I attach no weight to the conversation between Lam and the defendant which was no more than a mere assertion by the defendant.

77.  Accordingly, I find it unlikely that this was a case where by coincidence the defendant has missed two documents which happened to be all demand letters requesting the defendant to take up remedial works in connection with the water seepage.  In my judgment, this was another attempt by the defendant to distance herself from such demands.   

78.  Accordingly, I find as a matter of fact that the defendant has received the letter by the Management Company and the BCE’s quotation.  Further, given that the letter by the Management Company was sent on 12 August 2011, I find it reasonable to assume in the circumstances that by about mid-August 2011 the letter, be it sent by post or by insertion into the letter box of the defendant’s premises, should be received the defendant.  Therefore, through the receipt of this letter, by about mid-August 2011, the defendant had knowledge about Siu’s complaint of water seepage from her premises to the plaintiff’s premises.

Whether the defendant has adopted or continued the nuisance

79.  It follows from my aforesaid finding that since about mid-August 2011 the defendant has despite her knowledge about Siu’s complaint of the water seepage failed to take any sufficient steps to stop the water seepage or investigate the cause thereof.  As to this, the defendant has admitted in her evidence that she had not engaged any contractor to verify Siu’s complaint.  In my judgment, for the purpose of  investigating the cause of the water seepage it was not sufficient that the defendant has just asked her contractor to confirm whether he previously noticed any signs of water leakage in her premises during its decoration works in about late July 2011.  Nor was it sufficient for the same purpose that the defendant has gone back to her premises after the telephone conversation with Siu on 7 September 2011 and checked the matter herself.  There was nothing to suggest that the defendant was a qualified person to deal with the water seepage.   Finally, on this point, I consider that it was also not reasonable for the defendant to merely suggest Ng to approach FEDH for assistance without taking any positive action on her part.

80.  Further, as I find it, in between about mid-August 2011 and early December 2011, the defendant has refused Lam’s requests on three or four occasions for permission to inspect her premises.  In this context, I consider it irrelevant that the defendant has left her key to her premises with the caretaker.  This according to the defendant’s evidence was only for the viewing of her premises by prospective tenants.   As such, this could hardly be taken as a standing permission on the defendant’s part to allow inspection of her premises for any other purposes.

81.  As revealed by the defendant’s uncontradicted evidence, it was not until about 6 and 8 December 2011 that the defendant has respectively consented to the inspection of her premises and the carrying out of the colour water tests there by the Joint Office.  Since then, the defendant has cooperated with the Management Company to allow CKY’s inspection of her premises.   As to this, it is my finding that the defendant should at least by mid-December 2011 consent to the inspection by CKY under the arrangement of the Management Company.

82.  Based on the aforesaid, I find that in between about mid-August and 6 December 2011, there was a delay on the part of the defendant to take sufficient steps to stop the water seepage or investigate the cause thereof. 

83.  However, I do not consider that the defendant should be responsible for any delay after 6 December 2011.  As indicated above, the defendant has since then cooperated with the Management Company and the Joint Office to allow inspection and the carrying out of colour water test in her premises. 

84.  In this connection, there should be little dispute that the interchange joint in question should form part of the common parts of the Building in accordance with section 2 of the Building Management Ordinance, Cap. 344 (“BMO”) whereby common parts is defined as:

(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

(b) unless so specified or designated, those parts specified in the First Schedule.

85.  In the present case, the interchange joint as connected to the communal drainage pipe and the closestool drain pipe has not been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner.  Further, paragraph 6 of the First Schedule of BMO includes, inter alia, drains, soil pipes, waste pipes, ducts and conduits.  Accordingly, the interchange joint in question should aptly be regarded as the common parts of the Building.

86.  By virtue of the DMC which governed the rights and duties of the owners in the Building, it should be the duty of the manager to maintain and repair the common parts of the Building.  As such, the individual owner is only required to cooperate with the manager to allow access to his premises to facilitate inspection and the carrying out of the necessary remedial works[12]. Accordingly, it is my finding that since after 6 December 2011 the defendant has duly complied with her duty under DMC by allowing the inspection and the carrying out of the colour water tests in her premises by the Management Company and the Joint Office, and the execution of the rectification works by CKY.  

87.  Further, I do not consider that the defendant should be responsible for the delay caused by the revision of the CKY’s quotation and the late decision of the Incorporated Owners to engage CKY to perform the rectification works.

88.  In this regard, it was the defendant’s evidence that about two or three days after the telephone conversation with Lam on 31 December 2011, she has received from Lam by fax a quotation of the remedial works by CKY.  However, she noted that there was a mistake in the quotation about the place where the works of dismantling the wooden boards and cutting off of the closestool drain pipe should be performed.  Accordingly, the defendant informed the mistake to Lam who promised to relate the matter to CKY.  It was only on 9 January 2012 when the defendant received a revised quotation from Lam.  As far as this part of the defendant’s evidence is concerned, the same was not challenged under cross-examination and hence I accepted it in full. 

89.  Further, it was not disputed between the parties that since the Incorporated Owners wanted to receive further quotations from contractors other than CKY, it has waited until 9 February 2012 for its members to convene a meeting whereby it was finally resolved to engage CKY to perform the rectification works

90.  As a result, despite that CKY was able to find out the source of the leakage during his inspection in about mid-December 2011, through no fault of the defendant’s the execution of the remedial works has been delayed to 15 February 2012.

91.  Having said that, it remains my finding that between about mid-August 2011 and 6 December 2011 there was a delay on the part of the defendant to take sufficient steps to stop the water seepage or investigate the cause thereof.

92.  However, in order to attract liability by adopting or continuing the nuisance, the defendant must be proved to have knowledge, actual or constructive, that the water seepage was originated from her premises.  In this connection, the relevance of knowledge or constructive knowledge in establishing liability for nuisance was considered by the Court of Appeal in Cheung Sau Ling and Ng Bong Hon v Cheung Lai Chong 張秀玲及吳炳漢訴鄭禮莊, supra, and the correct approach was summarised by HH Judge Mimme Chan, as she then was, in Lau Sin Yee v the Financial Secretary Incorporated, DCCJ 311 of 2007, 14 February 2008, at paragraph 11:-

“In determining cases in which a plaintiff claims relief on the basis of water leakage constituting nuisance at common law, the tests are clearly set out in the case of Cheung Sau Ling and Ng Bong Hon v Cheung Lai Chong 張秀玲及吳炳漢對鄭禮莊CACV 268/1998 (unreported, 9 April 1999). The defendant must be shown to have actual or constructive knowledge that the leakage of water originated from the defendant's property. "Knowledge" can be what the defendant actually knew, or what the defendant should have known with normal and reasonable diligence. However, the onus of proof remains on the plaintiff, and it is not for a defendant to prove that the seepage of water did not originate from the defendant's premises, nor to prove that it had notcreated the nuisance. Obviously, whilst a defendant is entitled to require and wait for the plaintiff to produce the necessary evidence as to the cause of the water seepage, and to commission its own experts if it so requires to carry out investigations and to verify the cause of water seepage as alleged by the plaintiff, a defendant does so at its own risk because if the courts ultimately finds and accepts the plaintiff's evidence that the water seepage in question originated from the defendant's premises and that it should have known this, then it will have to accept liability in relation to the damage sustained by the plaintiff in the interim as a result of the water seepage.”

93.  Further, as a matter of general principle, knowledge about the occurrence of the water seepage is not tantamount to knowledge of it being originated from the defendant’s premises (see 張秀玲及吳炳漢訴鄭禮莊, supra, at paragraph 7). The burden of proving this rests on the plaintiff. 

94.  In the present case, there was no clear evidence as to when the defendant had actual knowledge that the water seepage was originated from her premises.  However, it is apparent that prior to the inspection by CKY in about December 2011, there has been no more than a mere suspicion that the water seepage was originated from the defendant’s premises.  By that time, no source of the water seepage has been identified within the defendant’s premises.  However, for the reasons given hereinbelow, I consider that the defendant could only have actual knowledge about the source of the water leakage after the execution of the rectification   works on 15 February 2012.

95.  In this regard, according to CKY’s testimony, after checking both premises, he came to the “initial assessment” that the interchange joint was broken in the floor slab and this caused the water seepage.  As for details of his inspection, he gave evidence that he had first checked the defendant’s premises whereby he found that there were no signs of damage on the pipes inside its wooden boards and the surface of the ground nearby was dry.  He then went down to check the plaintiff’s premises and found that there were moulds at the ceiling and the wall near its communal drainage pipe.  However, CKY did not explain in his witness statement or his oral testimony as to how he arrived at his initial assessment. 

96.  In essence, CKY has provided no basis of his initial assessment.  Nor has he provided any assessment as to the accuracy of it.  All he said that he had based his experience to form his initial assessment which turned out to be correct when he dug into the floor slab to commence the rectification works. It is however pertinent to note that CKY was not called to give expert opinion on the source of the water leakage.  Nor was his expertise in dealing with water seepage established at trial.

97.  Due to the lack of relevant information, I am not satisfied that by carrying out visual inspections of both premises the defendant should be able to find out that the water seepage was originated from her premises.  This was particularly the case where the burst point in the interchange joint was hidden in the floor slab.  Indeed, there were visual inspections and colour water tests performed by the government authorities which suggested otherwise (i.e. the communal drainage pipe in the plaintiff’s premises was defective). 

98.  In this regard, it is irrelevant that CKY’s initial assessment was subsequently proved to be correct when he dug into the floor slab to commence the rectification works.  The question that needs to be dealt with in the context of adopting or continuing a nuisance is whether during the period of her delay the defendant had the requisite actual knowledge, or constructive knowledge by taking reasonable means.  Unless and until such actual or constructive knowledge is proved on the part of the defendant, no duty for her to stop the water seepage or investigate the cause thereof shall arise (see 張秀玲及吳炳漢訴鄭禮莊, supra, at paragraphs 7, 12 and 19).

99.  Further, I do not consider it reasonable to require the defendant to dig into her floor slab in order to investigate the cause of the water seepage.  All along, it has been the plaintiff’s complaint that the defendant has failed to dismantle the wooden boards and allow inspection of her premises.  As such, the defendant has never been criticized for her failure to dig into the floor slab to investigate the source of the water leakage.  

100.  By reason of the aforesaid, I am not satisfied that the defendant knew or by taking reasonable steps ought to have known about the source of the water seepage in her premises.  In my judgment, the plaintiff has not discharged the burden of proof in this respect and his claim for nuisance against the defendant must fail accordingly.

The plaintiff’s claim for negligence

101.  For similar reasons, since the plaintiff has failed to prove that the defendant knew or ought to have known that the water seepage was originated from the defendant’s premises, his claim against the defendant for negligence must fail because the defendant was under no duty to stop the water seepage or to investigate into the cause thereof.  Alternatively, there was no breach of such duties by the defendant in the circumstances.

Quantum

102.  For the sake of completeness, I shall deal with the quantum of the plaintiff’s claim on the basis that I had found for the plaintiff on the question of liability. 

103.  There are altogether two heads of damages under the plaintiff’s claim, namely:-

(a) Costs of the remedial works in the sum of $31,300; and

(b) Loss of rental in the sum of $45,206.

Costs of the remedial works

104.  It is the plaintiff’s case that as a result of the water seepage, Siu has engaged Hing Cheong Engineering Company (“Hing Cheong”) to carry out remedial works in the plaintiff’s premises at the costs of $31,300.

105.  This head of the plaintiff’s claim was supported by the invoice (“Invoice”) of Hing Cheong dated 13 March 2012 in which the costs of the remedial works were particularised.  Siu also testified in court that the remedial works was necessary as a result of the water seepage, and was duly carried out and paid in accordance with the Invoice.  However, under cross-examination Siu conceded that works item no. 1 in the Invoice was unrelated to the water seepage.  Apart from this, there was no effective challenge to Siu’s evidence about the rest of the remedial works.

106.  In the circumstances, I find that the plaintiff should have been entitled to damages under this head in the sum of $25,800 after deducting $5,500 (i.e. the costs of works item no.1) from $31,300 (i.e. the total costs of the remedial works).

Loss of rental

107.  The plaintiff’s premises was let out on 15 November 2011 which tenancy was terminated prematurely by the tenant on 15 January 2012.  Accordingly, the plaintiff claimed for the loss of rental from 15 January 2012 to 13 March 2012 (i.e. the date of completion of the remedial works by Hing Cheong) in the sum of $45,206.90.

108.  There was however no evidence to show that at the material times the defendant knew or ought to have known about the leasing of the plaintiff’s premises.  Therefore, the plaintiff’s claim under this head must fail on the issue of remoteness of damages.

109.  Based on the aforesaid, it is my finding that the plaintiff should have been entitled to damages in the sum of $25,800 but for my finding for the defendant on the question of liability.

Conclusion

110.  For the reasons given above, I find for the defendant and dismiss the plaintiff’s action accordingly.

Costs

111.  I see no reasons in the present case why costs should not follow the event.  Accordingly, I make an order nisi that costs of this action be paid by the plaintiff to the defendant, with certificate for counsel, such costs to be taxed if not agreed.  This order nisi will become absolute after 14 days in the absence of any application to vary the same.